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1985 Supreme(Pat) 160
PATNA HIGH COURT
U.Sinha, L.Sharma and Hari Lal Agrawal JJ.
Krishna Ballabh Prasad Singh
Versus
Sub-divisional Officer, Hilsa-cum-returning
Decided On : MAY 2, 1985
The election process continues until the candidate is returned, and the Returning Officer has the authority to correct any mistakes made during the counting process.
Headnote:
ELECTION - PROCESS - COMPLETION - ARTICLE 329(B) OF THE CONSTITUTION OF INDIA - INTERPRETATION - ELECTION PETITION - REMEDY - NATURAL JUSTICE - PRINCIPLES - APPLICABILITY.
Fact of the Case:
The petitioner, a candidate in the Bihar Legislative Assembly election, challenged the Returning Officer's order canceling his election and declaring respondent No. 4 as the successful candidate. The petitioner argued that the election process was complete after the counting of votes and announcing the petitioner as the successful candidate, and therefore, the Returning Officer had no jurisdiction to make any further changes. The respondents contended that the election process continued until the certificates in Forms 21C and 22 were issued, and that the Returning Officer had the authority to correct any mistakes made during the counting process.
Finding of the Court:
The court held that the election process continues until the candidate is returned, and that the Returning Officer had the authority to correct any mistakes made during the counting process. The court also held that the petitioner's remedy was to file an election petition, and that the principles of natural justice were not violated in this case.
Issues: 1. Whether the election process was complete after the counting of votes and announcing the petitioner as the successful candidate? 2. Whether the Returning Officer had the jurisdiction to cancel the petitioner's election and declare respondent No. 4 as the successful candidate? 3. Whether the petitioner's remedy was to file an election petition? 4. Whether the principles of natural justice were violated in this case?
Ratio Decidendi: 1. The court held that the election process continues until the candidate is returned, and that the Returning Officer had the authority to correct any mistakes made during the counting process. This interpretation is based on the wide meaning given to the word "election" in Part XV of the Constitution of India, which includes the entire procedure to be gone through to return a candidate to the legislature. 2. The court held that the petitioner's remedy was to file an election petition. This is because the Representation of the People Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over. 3. The court held that the principles of natural justice were not violated in this case. This is because the Returning Officer had the authority to correct any mistakes made during the counting process, and the petitioner had the opportunity to challenge the Returning Officer's decision by filing an election petition.
Final Decision: The court dismissed the petitioner's writ application, holding that it was not maintainable and that the petitioner's remedy was to file an election petition.
Hari Lal Agrawal, J.
1. This writ application, which arises out of an election matter, has been placed before me on account of a difference between the learned Judges of the Division Bench before whom it was originally placed for hearing.
The difference has arisen on the question of maintainability of the writ application in view of the provisions contained in Article 329(b) of the Constitution of India.
2. The main question that falls for consideration is the stage at which the process of election of a candidate contesting an Assembly seat can be said to be complete within the meaning of Article 329(b) of the Constitution of India.
3. The facts which I shall briefly state just hereinafter, are not in controversy except a few.
The petitioner and respondent No. 4 (Ramswaroop Prasad), besides several others, were contesting for the Bihar Legislative Assembly seat from the Islampur Assembly Constituency (Constituency No. 197). This election was held in the month of March, 1985. The petitioner filed his nomination paper as a Communist Party candidate while respondent No. 4 as the Indian National Congress (1) party candidate. The polls in the above mentioned constituency took place on 2nd and 5th of March and the counting of votes was taken up on 6th March. After the counting it transpired that at 61 booths 90% votes had been cast. Allegations of booth capturing by the petitioner were made on the part of respondent No. 4. The Election Commission of India accordingly ordered repolling only in 60 stations. One of the booths, namely, Booth No. 60, was, however, not included in the repolling as the votes at this station were shared by the candidates in reasonable proportions.
4. Repoll was accordingly held on 12-3-85 and after counting, the petitioner was found to have secured the majority votes, namely, 54, 352 i.e., 274 votes more than respondent No. 4. Respondent No. 4 filed an application for recounting of the ballot papers but the Returning Officer rejected the application and announced the petitioner as having been duly el elected to the Assembly. A certificate of election in Form No. 22 (Annexure 1) was also delivered by the Returning Officer to him. The result was announced by the All India Radio in the evening of 13th March itself and the newspapers flashed the news on 14th March. The facts are not in controversy so far.
The certificate in Form No. 2IC, required to be issued by the returning Officer, was admittedly not sent to the authority concerned. On the other hand on 15-3-85 the Returning Officer issued a notice dated 13-3-85 (Annexure 8) cancelling the election of the petitioner and declaring respondent No. 4 as the successful candidate. The Returning Officer also issued the certificate in Form Nos. 21-C and 22 on 15-3-1985 bearing the date 13-3-1985. by antedating it, as alleged by the petitioner. The name of respondent no 4 was also published in the Official Gazette as the duly elected candidate.
5. The petitioners grievance is that the order cancelling his election as well as the certificates issued in favour of the respondent No. 4 (including Annexure B to the counter-affidavit), apart from being without jurisdiction and wholly illegal, is also vitiated for infraction of the principles of natural justice.
6. It may be stated that the reason for this dramatic change and the passing of the impugned order is said to be due to a mistake committed by respondent No. 1 in omitting to count the ballot papers of Booth No. 60 (sic) in which the petitioner had secured only 77 and respondent No. 4, 780 votes. Thus respondent No. 4 is said to have secured 429 votes more than the petitioner.
7. In the counter-affidavit filed by respondent No. 1 he has alleged that the petitioner had pressurised him to give the certificate (Annexure 1) even before the completion of the filling up of Form Nos. 21 C and 21 E which were in process and the certificate given to the petitioner by him was due to mistake. The moment the mistake was
